This opinion is subject to
further editing and modification.The
final version will appear in the bound volume of the official reports.

No.03-1181-D

STATE OF WISCONSIN:

IN SUPREME COURT

In the
Matter of Disciplinary Proceedings

Against
Chris K. Konnor, Attorney at

Law:

Office
of Lawyer Regulation,

Complainant,

v.

Chris
K. Konnor,

Respondent.

FILED

MAR 25, 2005

Cornelia G. Clark

Clerk of Supreme Court

ATTORNEY disciplinary proceeding. Attorney
publicly reprimanded.

¶1PER CURIAM. We review the referee's report and
recommendation that Attorney Chris K. Konnor be publicly reprimanded for having
committed eight counts of professional misconduct as alleged in the complaint
filed by the Office of Lawyer Regulation (OLR) in this court on May 1,
2003.In general, the referee
determined that Konnor had seriously neglected a probate matter, had failed to
keep the beneficiaries advised of the status of the matter, had not
appropriately handled the estate assets because he had not deposited them in
accounts bearing interest, had not made timely deposits, and had not attempted
to collect rents on the estate property.

¶2Rejecting the OLR's position that Konnor's license should be
suspended for 90 days as a sanction for these eight separate counts of
misconduct, the referee recommended a public reprimand and that Konnor be
ordered to pay the costs of this proceeding totaling $11,365.06.

¶3Neither party has appealed from the referee's report and
recommendation for public reprimand.Konnor has, however, filed an objection in this court to the costs as
requested by OLR.Konnor seeks a
reduction or amelioration of the total costs because he claims that several
times prior to the hearing before the referee, he and/or his attorney expressed
willingness to resolve the matter by a stipulated private or public reprimand;
the OLR, however, declined to accept those offers and instead chose to pursue a
90-day license suspension as a sanction.Konnor maintains that as a matter of equity and reasonableness, this
court should view his offers to accept a public reprimand for his misconduct as
a reason to now mitigate the costs as requested by OLR——especially those costs
which were incurred because of the hearing before the referee.Konnor is willing to pay $6774.91 in costs
incurred prior to the referee's hearing, but now asks to be absolved from
paying the additional $4590.15 in costs that were incurred as a result of the
referee's hearing.According to Konnor,
had OLR accepted his offer for a public reprimand instead of demanding a 90-day
suspension, this matter would have been resolved without a full evidentiary
hearing before the referee.

¶4We determine that Attorney Chris K. Konnor's professional misconduct
as established by the clear and convincing evidence presented to the referee
warrants a public reprimand.We also
determine, for reasons explained below, that Konnor should pay all the costs of
these disciplinary proceedings in the amount specified, $11,365.06.

¶5Respondent, Chris K. Konnor, was admitted to the practice of law
in this state in April 1988 and practices in Milwaukee.He has never before been the subject of
professional discipline but he has twice been administratively suspended for
nonpayment of dues.

¶6The OLR filed a complaint in this court alleging eight
violations by Konnor of the rules of professional conduct.Those violations arose from Konnor's
handling of the estate of B.B. who died intestate on February 20, 1997,
survived by five brothers and the children of two brothers who had predeceased
her.

¶7Attorney Stanley Hack was appointed to act as referee in this
matter, and after a hearing, he filed his report concluding that OLR had
established by clear and convincing evidence that Konnor had committed the
eight counts of misconduct as alleged.

¶8As noted, neither side has appealed from the referee's report;
consequently the facts are not now in dispute.Briefly summarized, the pertinent facts with respect to each of the
eight counts are these:

COUNT
ONE

¶9Attorney Chris K. Konnor was retained to handle the B.B. estate
in March of 1997.After preliminary
proceedings to determine heirs, Konnor was appointed as personal representative
by the Milwaukee Deputy Register in Probate on October 6, 1997.The next day, Konnor opened a
noninterest-bearing estate checking account for which, as the personal
representative, Konnor had check writing authority.Konnor, however, did not arrange with the bank to have the
cancelled checks returned to him, nor did he regularly receive from the bank
the cancelled checks for the estate until January 2002, after one of the
beneficiaries had complained to OLR about Konnor's handling of the estate.That course of conduct, from 1997 to 2002,
where Konnor failed to maintain complete records of the account he held in
trust, led to Count One of the OLR complaint which alleged that Konnor had
violated SCR 20:1.15(a) and (e).[1]

COUNT
TWO

¶10At the time of her death, B.B. owned a rooming house with
multiple rental units.After her death,
one or more of her brothers moved into the rooming house and began collecting
rent from the other tenants; however, these rental payments were not forwarded
to Konnor for deposit in the estate's account.Konnor sent letters to the 12 tenants in the rooming house requesting
that their rent be forwarded directly to him as the estate's personal
representative.Initially, he received
payment from several of the tenants, but after October 6, 1997, Konnor received
rent payments from only one of the tenants; the rental payments from the other
tenants continued to be received by two of B.B.'s brothers.

¶11In a letter sent to a tax accountant in February 2000, Konnor
stated that he believed the decedent's two brothers had "stole all the
rents after the decedent died."Despite this, Konnor did not inform the probate court about any
difficulty in collecting the rents, nor did he notify the police or take any
steps to try to evict the tenants from whom he was not receiving rent.

¶12This course of misconduct led to Count Two of the OLR complaint
which alleged that instead of collecting rent from all of the tenants,
including B.B.'s brothers, Konnor had allowed the brothers to misappropriate
the rent from the estate without taking any action to protect the estate
assets.By doing nothing to prevent
these types of estate misappropriations, it was alleged that Konnor had failed
to act with reasonable diligence and promptness, in violation of SCR 20:1.3.[2]

COUNTS
THREE, FOUR, AND FIVE

¶13In July 1998 Konnor deposited several money orders he had
received from the one tenant who had been making the rental payments directly
to him.The dated money orders
contained notations that they represented that tenant's rent for December 1997
and for January, February, March, April, June, and July of 1998.In January 1999 Konnor deposited another
money order from that tenant dated August 3, 1998; again in February 2000, Konnor
deposited another money order from that same tenant dated May 1, 1998.In his testimony before the referee, Konnor
offered no explanation for these delayed deposits other than stating that he
did not routinely travel to the area where the bank was located.

¶14The testimony before the referee also established that in
October 1997 Konnor sent a letter to the heirs of the estate advising them that
he was in the process of preparing the inventory; however, in April 1998 the
inventory had yet to be filed and the probate court ordered Konnor to file it
by June 11, 1998.Konnor failed to
appear at that scheduled meeting and did not then file the inventory.The matter was rescheduled to July 9, 1998,
and Konnor was warned that he could be removed as personal representative if he
failed to appear at that hearing.Konnor finally filed the estate inventory on July 8, 1998, listing gross
estate assets at $62,948.98.Konnor,
however, had failed to provide all interested parties with a copy of that
inventory.By letter dated November 13,
1998, the probate court advised Konnor that the estate had then been open for
14 months and that it would have to be closed within the next 4 months but a
petition for an extension of time could be filed.At that time, a number of documents still remained to be filed in
the estate including the final account and final judgment.

¶15In January 1999 the decedent's rooming house was sold. Konnor,
as personal representative, received two checks dated January 15, 1999,
representing the proceeds of the sale.Those checks, however, were not deposited into the estate's checking
account until May 1999.

¶16On March 12, 1999, the probate court issued another order
requiring Konnor to appear on May 27, 1999, to show cause why the final
judgment had not yet been entered.

¶17Between July 1999 and November 1999, Konnor's brother
Stewart——who was homeless and who had a history of substance abuse as well as
an extensive criminal history including convictions for theft——had been allowed
by Konnor's father to live in the building where Konnor's law office was
located.Stewart Konnor had access to
his brother's law office and stole the checkbook for the B.B. estate and then
cashed six checks payable to himself (Stewart) totaling $3500.Chris Konnor had left that checkbook in an
estate file on the floor next to his desk; neither the file nor the checkbook
had been kept in a secure place.

¶18After discovering the theft, Konnor deposited $3544 he had
obtained from his father into the estate's checking account in February
2000.The checks Konnor had received
from his father to pay back the money his brother had stolen from the estate,
contained misleading notations about the purpose for which the checks from his
father were intended.Konnor did not
advise the police about the thefts from the estate's account nor did he inform
the heirs or the court about the misappropriations.Only after OLR began its investigation into the grievances the
heirs had filed, did Konnor disclose that the thefts had occurred; that
disclosure was in Konnor's final account filed on May 15, 2004.

¶19Based on this course of conduct, Count Three of OLR's complaint
alleged that by not depositing the estate's funds into the trust account in a
timely manner, Konnor had failed to keep those funds in trust, in violation of
SCR 20:1.15(a).[3]

¶20Similarly, Count Four alleged that by not taking any steps to
lock his office or keep the estate checkbook in a secure location, Konnor had
failed to safeguard the estate's funds and hold them in trust, in violation of
SCR 20:1.15(a).

¶21Count Five alleged that because Konnor had not reported the
thefts to the police or the heirs, and had provided misleading notations with
respect to where the reimbursement checks had come from and for what purposes
they had been received, Konnor had engaged in conduct that was deceitful and
conduct that amounted to misrepresentation by omission, in violation of SCR
20:8.4(c).[4]

COUNTS
SIX, SEVEN, AND EIGHT

¶22In February 2000 Konnor retained a tax accountant to prepare the
estate's tax returns and the decedent's personal income tax returns.In January of 2001 the accountant sent
Konnor completed tax forms for 1996, 1997, 1998, and 1999.Although penalties and interest had resulted
from the late filing of the returns, Konnor failed to advise the heirs about
the penalties or interest.

¶23On May 25, 2001, Konnor liquidated the estate's mutual funds and
deposited the proceeds in a noninterest-bearing account having a balance of
over $61,000.In May 2001 Konnor wrote
to the heirs for the first time since October 1997, informing them that all of
the tax returns had been filed except for the 2001 returns which Konnor wrote
would be filed in the near future.

¶24Konnor later advised the heirs that he would be making
distributions and closing the estate.On January 15, 2002, Konnor filed a Department of Revenue form required
for a fiduciary closing of an estate; he also asked the accountant to complete
the final tax return for the estate.The information he provided revealed that for an extended period of
time, more than $58,000 of the estate's funds had remained in a non-interest
bearing account.

¶25Subsequently the probate court ordered Konnor to file the final
account by April 8, 2003; he did not do so.At an April 15, 2003, hearing, Konnor told the court that he had
problems balancing the final account.

¶26Konnor finally filed the final account on May 15, 2003, and
distributions were made to the various heirs in July 2003.

¶27This course of conduct led to Count Six of the OLR complaint
which alleged that by failing to provide the heirs with a copy of the
inventory, by failing to notify the heirs of the misappropriation of the estate
funds, and by failing to notify the heirs of the penalties the estate had
incurred with respect to the late tax filings, Konnor had failed to explain a
matter to the extent reasonably necessary to permit the heirs to make informed
decisions regarding the representation, in violation of SCR 20:1.4(b).[5]

¶28Similarly, in Count Seven, OLR alleged that by depositing large
sums of the estate's assets into a noninterest-bearing checking account for extended
periods of time, Konnor had violated SCR 20:1.15(c)(1)a.[6]

¶29Finally, in Count Eight, OLR alleged that by failing to close
the estate for more than five years, Konnor had failed to act with reasonable
diligence and promptness, in violation of SCR 20:1.3.[7]

¶30After determining that OLR had proven by clear and convincing
evidence all eight counts of misconduct as alleged in its complaint, the
referee then turned to an appropriate sanction to be recommended for Konnor's
misconduct.In his report, the referee
identified several aggravating factors including the number of rules violations
Konnor had committed, his serious neglect of the probate matter, Konnor's lack
of concern in keeping the heirs advised of the status of the matter over a
number of years, and his lack of proper handling of estate assets.Balanced against those aggravating factors,
the referee noted several mitigating factors including Konnor's cooperativeness
with OLR, his lack of a history of prior professional discipline, the fact that
Konnor had not misappropriated any of the estate's assets for his own use, his
good faith effort to restore the assets stolen by his brother, and finally, his
remorse.The referee recommended, in
light of prior cases with similar facts, that a public reprimand was an
appropriate sanction for Konnor's professional misconduct.The referee also recommended that Konnor be
required to pay all the costs of the disciplinary proceeding now totaling
$11,365.06.

¶31As noted, the only matter in dispute before this court is
Konnor's request that he be absolved from paying all of the costs; he maintains
that he should only pay those costs incurred before the referee's hearing
because Konnor had previously offered to accept a public reprimand which was
the same sanction ultimately recommended by the referee.According to Konnor, had the OLR agreed to a
public reprimand at the time, there would have been no need for the public
hearing before the referee.

¶32Although under SCR 22.24(1) this court has discretion to assess
all or a portion of the costs of the disciplinary proceeding in which
misconduct has been found against the respondent, this court very infrequently
reduces the reasonable costs as requested by the OLR.There is no claim in the instant case that the costs requested by
OLR are excessive or unreasonable.Under these circumstances we decline Konnor's request to reduce the
costs.

¶33We note, however, that questions concerning appropriate costs in
OLR matters have frequently been before this court.Consequently, we have asked the Board of Administrative Oversight
in conjunction with the State Bar, to develop a comprehensive approach
regarding the assessment of costs in OLR matters and to present the proposals
to this court for our consideration.

¶34We adopt the findings of fact and conclusions of law as set
forth in the referee's report because they are supported by clear and
convincing evidence.We determine that
the seriousness of Attorney Konnor's misconduct as established in this
proceeding warrants a public reprimand.And, we direct that Attorney Konnor pay the costs of these disciplinary
proceedings now totaling $11,365.06.

¶35IT IS ORDERED that Chris K. Konnor is publicly reprimanded for
professional misconduct.

¶36IT IS FURTHER ORDERED that within 60 days of the date of this
order Chris K. Konnor pay to the Office of Lawyer Regulation all the costs of
this proceeding provided that if such costs are not paid within the time
specified and absent a showing to this court of his inability to pay the costs
within that time, the license of Chris K. Konnor to practice law in Wisconsin
shall be suspended until further order of this court.

¶37SHIRLEY S. ABRAHAMSON, C.J. (concurring).I write to provide some context and
perspective regarding costs in disciplinary proceedings.First, some background about the lawyer
regulation system.Second, facts about
costs for the fiscal years July 1999 through June 2004.Third, the dissenting opinions (in seven
cases) during these years objecting to the levying of full costs on the lawyer
involved.Fourth, alternatives the
court might consider in levying costs on the lawyer involved.Fifth, given this discussion, where do we go
from here.

I

¶38To put costs in context and perspective, it is helpful to have
some background about the lawyer regulatory system and the rules regarding
costs.

¶39The Code of Professional Responsibility and the provisions for
the lawyer regulatory system have always been designed to protect the public
from lawyers' unethical conduct and to protect lawyers from unfounded and
unproven charges.In 2000 the court
revamped the lawyer regulation system to provide more protections for lawyers,
complainants, and the public.In
adopting the change, the court heard from representatives of the State Bar of
Wisconsin and the American Bar Association, individual lawyers, and the
public.The court also consulted with a
mediator, Kenneth Feinberg, about the operation of the then-existing lawyer
regulatory system.

¶40The Office of Lawyer Regulation, as created effective October 1,
2000, was designed to provide a series of checks and balances to better protect
the public and lawyers.The entire OLR
system is overseen by a Board of Administrative Oversight composed of lawyers
and public members.Before a complaint
is filed against a lawyer, an independent panel composed of lawyers and public
members must find probable cause to proceed against the lawyer.If a complaint is dismissed, the complainant
can get a review of the dismissal.If a
complaint is filed, a referee determines the facts and whether violations have
occurred, and recommends discipline.The Supreme Court ultimately establishes the facts, the violation, and
the discipline.

¶41The lawyer regulatory system is presently totally funded by
annual assessments on the lawyers licensed to practice in the state, not by the
state.[8]For fiscal year July 2004-June 2005, each
member of the bar was assessed $132.00.An individual lawyer who is subject to a disciplinary proceeding, a
medical incapacity proceeding, or a reinstatement proceeding may be ordered to
pay all or part of the costs of his or her proceeding, thus reducing the total
operating expenses of the lawyer regulatory system and the assessment on each
member of the state bar.

¶42Since 1970, two types of expenditures have been present in the
lawyer regulatory system: (1) general administrative expenses, and (2) costs of
proceedings against a particular lawyer.The state and the members of the state bar have, over the years, provided
financial support for the general administrative expenses of the lawyer
regulatory system since 1970.Costs of
a proceeding against an individual lawyer during this period could be levied
against that lawyer.

¶43In 1970 the state paid all the expenses incurred by the Board of
Bar Commissioners, the administrative entity governing the lawyer regulatory
system.The state's expenditures for
the system were reduced to the extent that the costs of formal proceedings
against an individual attorney were recovered from the attorney involved in the
proceedings.[9]

¶44In 1976, when the Board of Attorneys Professional Responsibility
(BAPR) replaced the Board of Bar Commissioners, only the expenses of formal
proceedings were paid by the state.[10]The general expenses of administering the
lawyer regulatory system were imposed on the members of the state bar.Costs were apparently still levied against
individual lawyers.

¶45In 1981-82 the members of the state bar became responsible for
funding in full the lawyer regulatory system.The Joint Finance Committee of the State Legislature eliminated state
funding for the lawyer regulatory system and imposed the expenses of the system
on members of the state bar.[11]Continuing past practice, the Supreme Court
permitted BAPR to collect from an individual attorney the costs incurred in his
or her disciplinary proceeding, reinstatement proceeding, or moral character
investigation.[12]

¶46Thus, since at least 1970, Wisconsin has authorized levying on
an individual attorney all or a portion of the costs incurred in that
attorney's disciplinary proceedings.

¶47Similarly, the present supreme court rules provide for the
levying of all or a portion of the costs on the individual lawyer in any
proceeding in which misconduct is found, in which medical incapacity is found,
and in which reinstatement is granted or denied after license suspension.[13]

¶48Costs in individual discipline, medical incapacity, and
reinstatement proceedings are defined in the rules as follows:

·Compensation and necessary expenses of referees;

·Fees and expenses of counsel for the Office of Lawyer
Regulation;

·Reasonable disbursements for service of papers;

·Amounts actually expended for certified copies of
public records, postage, telephone, adverse examinations and depositions,
witness fees and expenses, compensation and reasonable expenses of experts and
investigators employed on a contractual basis; and

¶49I move now to analyze the costs levied on individual attorneys
from the beginning of fiscal year 1999 (July 1, 1999) through calendar year
2004.Some of these cases were
initiated by BAPR and completed by OLR; others were initiated and completed by
OLR.

¶50Costs are not levied when no violation is proved or when a
stipulation is reached before a referee is appointed.Otherwise the general practice of the court has been to levy the
full costs of the discipline, medical incapacity, or reinstatement proceeding
on the lawyer involved.If a lawyer
cannot pay the full costs immediately, an agreement may be reached to enable
the lawyer to pay the costs over time.If a lawyer is indigent, all or part of the costs are waived.

¶51During this five-year period the court decided 123 disciplinary
cases, 83 of which were contested and 40 of which were stipulated.The court also decided 15 reinstatement
cases (all of which involved formal proceedings and involved costs) and three
medical incapacity cases (all resolved by stipulation with no costs).In only seven cases did one or more justices
dissent from levying full costs, and advocate instead levying partial costs;
five were contested disciplinary cases and two were reinstatement proceedings.[15]

¶52To evaluate the functioning of OLR and costs, here are some
facts for these five fiscal years:

·Misconduct was found on all counts in 66 of the 83
contested disciplinary cases, or in 80% of contested cases.

·Misconduct was found on some (but not all) counts in 11
of the 83 contested disciplinary cases, or in 13% of contested disciplinary
cases.

·All counts were dismissed in 6 of the 83 contested
disciplinary cases, or in 7% of contested disciplinary cases and no costs were
levied.

·In the 15 reinstatement cases, 10 reinstatements were
granted and 5 were denied.

·The costs in the 92 disciplinary and reinstatement
proceedings during this period in which costs were levied ranged from a few
hundred dollars to the five highest costs of almost $52,000, $27,500, $22,500,
$21,800, and $20,500.The average
total cost levied on an individual lawyer for the 92 cases in this period in
which costs were levied was $6170.

·Costs in the 92 disciplinary and reinstatement
proceedings in which costs were levied on an individual lawyer were less than
$4000 in 54 cases (58% of the cases), between $4000 and $10,000 in 20 cases
(22% of the cases), and between $10,000 and $20,000 in 13 cases (15% of the
cases), and over $20,000 in 5 cases (5% of the cases).Of those 18 cases in which costs exceeded
$10,000, one was a reinstatement case, in which reinstatement was denied.

·Attorney fees in the 92 disciplinary and reinstatement
cases in which costs were levied on an individual lawyer ranged from $289 to a
high of $32,400.Attorney fees
comprised about 63% of the total costs levied.

·Costs levied for the five fiscal years totaled
$569,071.OLR collected $431,958 in
costs during the same period.

III

¶53I know of only one case during this period in which the court
levied less than full costs.Dissenting
opinions in seven cases have objected to the levy of full costs on an
individual lawyer from July 1, 1999 through this case.The dissents have varied in length, vigor,
and vitriol, as is each justice's prerogative.

¶54Although much heat has been generated about costs in some of the
seven cases, including this one, unfortunately little light has been shed on
the subject.

¶55Except for the dissent in Polich (mandated today),
proposing that costs be levied on the basis of counts proved,[16]
the other dissenting opinions offer no principles, criteria, or guidelines to
assist the court in fairly and equitably exercising its discretion to levy less
than full costs.

¶56In determining reasonable attorney fees, the court has adopted
in non-disciplinary cases the lodestar approach for calculating attorney
fees:The reasonable number of hours is
multiplied by the reasonable hourly rate.Supreme Court Rule 20:1.5(a) lists factors to be considered in
determining the reasonableness of a fee.The lodestar approach is the approach actually used for attorney fees
charged in disciplinary cases.In an
OLR matter, OLR must submit evidence supporting the hours worked.The hourly rate is fixed at $60 by supreme
court rule.[17]

¶57In three of the seven cases in which there has been a dissent on
full costs levied on the lawyer involved, the dissent merely objected to
levying full costs without explaining what a reasonable levy might be.[18]

¶58In OLR v. O'Neil, 2003 WI 48, 261 Wis. 2d 404,
661 N.W.2d 813, the attorney disclosed extensive information to police
about meeting with his client, Erik Garcia, regarding a divorce.Garcia's wife was found dead the same day
Attorney O'Neil filed the divorce petition; Garcia called to request a refund
of the fee because he no longer needed a divorce.In several subsequent interactions with the police, Attorney
O'Neil disclosed the details of conversations with his client and turned over
his divorce file, without consulting with Garcia or invoking the
attorney-client privilege.Garcia was
later convicted of first-degree intentional homicide in the death of his
wife.

¶59The referee recommended that a public reprimand be imposed for
several reasons:None of the disclosed
files or information from Attorney O'Neil was used in Garcia's prosecution;
Garcia did not make an issue of the disclosure at his trial; O'Neil claimed he
was trying to help Garcia; and O'Neil cooperated with OLR.The referee recommended that Attorney O'Neil
pay the full costs of the proceedings ($11,438.82).This court agreed with the reduced penalty and the levy of full
costs.

¶60Justices Bablitch, Prosser, and Sykes agreed with thediscipline imposed but dissented in a
one-sentence dissent from the levy of full costs as excessive, without
explanation or discussion of what would be reasonable costs.In his concurring and dissenting opinion in
the present case, Justice Prosser classifies this case as one that was
over-litigated.[19]

¶61In OLR v. Webster, 2002 WI 100, 255
Wis. 2d 323, 647 N.W.2d 831, the referee recommended the denial
of Attorney Webster's petition for reinstatement to practice law in
Wisconsin.Attorney Webster's license
to practice law was suspended "for two years following his felony
conviction in federal court on the charge of aiding and abetting the fraudulent
concealment of a debtor's property from a bankruptcy trustee."[20]Following his release from federal prison,
the referee found that Attorney Webster, in a series of minor infractions, had
engaged in the unauthorized practice of law.The referee noted that individually these offenses did not necessarily
require that Attorney Webster's petition be denied, but that cumulatively they
rendered Attorney Webster unable to overcome the requisite burden imposed by
law for reinstatement.This court
agreed and ordered costs to be paid in the amount of $9121.75 ($7224.10 for the
proceedings before the referee; $1897.65 for the costs incurred during the
appeal).

¶62The dissenting justice argued for reinstatement, characterizing
the infractions as "molehills of unauthorized practice" being
elevated to great heights and the costs as a "whopping sum."[21]

¶63In OLR v. Penn, 2002 WI 5, 249 Wis. 2d 667, 638
N.W.2d 287, Attorney Penn petitioned for reinstatement to practice law in
Wisconsin after a suspension following six misdemeanor drug convictions.This court agreed with the referee that
reinstatement was warranted.The court
imposed the reinstatement proceedings costs totaling $6803.64 on Attorney Penn,
but allowed Attorney Penn one year to pay rather than the six months recommended
by the referee. Two justices concurred in the reinstatement but dissented from
the court's levying full costs on the lawyer.Attorney Penn objected to proceeding under the new OLR rules for
reinstatement but did not object to the costs.The dissenting justices objected to the costs compared to those that
would have been imposed under the prior procedure.[22]

¶65Attorney Trewin objected to costs exceeding $25,000 on the
ground that many of the facts were undisputed and that much of the OLR costs
related to dismissed claims that were not challenged on appeal or were
unreasonably incurred in excessive and redundant discovery.The court noted that the determination of
whether those undisputed aspects of his case amounted to disciplinary
violations was "hotly contested."[23]

¶66The Trewin dissent (on costs, but not discipline)
asserted that "in retrospect" certain counts "were
overpled."[24]Retrospect is far from perfect.OLR's losing on a charge is not necessarily
the equivalent of overpleading.

¶67The Trewin dissent asks whether the "cost assessment
in some disciplinary proceedings is consistent with the lodestar methodology or
whether it is driven by nothing more than OLR's legitimate need for funding and
[the court's] cold-blooded political determination that additional costs not be
assessed to the members of the state bar.""Both of these factors are reasonable," concludes the
dissent, "but not if they completely override the element of fair play to
a respondent attorney."[25]In my opinion, neither of these factors is
reasonable under any conditions.Furthermore, neither factor has been asserted as justifying the levy of
costs in any proceeding.

¶68In a fifth case, OLR v. Marks, 2003 WI 114, 265
Wis. 2d 1, 665 N.W.2d 836, the referee recommended that Attorney
Marks be suspended for 60 days based on a finding that Attorney Marks engaged
in intentional misrepresentation in violation of SCR 20:8.4(c) when he
wrongfully "notif[ied] two insurance companies that he maintained a lien
on the proceeds for 25 percent of his former client's recovery in a personal
injury wrongful death claim," contrary to the plain language of the fee
agreement.[26]The referee dismissed two claims that were
filed against Attorney Marks under the Michigan Rules of Professional
Conduct.The court disagreed with the
dismissal but did not remand the matter in the interest of judicial
economy.Attorney Marks argued that a
60-day suspension was too long.We
agreed with the referee, noting that Attorney Marks had been reprimanded on
three separate occasions.

¶69The dissent asserted that the costs were disproportionate to the
seriousness of the offense and "in part reflect OLR's obsession to appeal
an issue that it lost before the referee."[27]

¶70In a sixth case mandated this same day, OLR v. Polich,
2005 WI 36, ____ Wis. 2d ____, ____ N.W.2d ____, one dissent
proposes levying costs on the basis of counts proved.[28]We rejected this methodology in several
cases, most recently in In re Pangman, 216 Wis. 2d 440, 574
N.W.2d 232 (1998), without explanation.The other dissent does not fully subscribe to this methodology but joins
in seeking a remand to the referee for an apportionment of costs.[29]

¶71The fairness of this approach is open to question.For example, Attorney Polich failed to
comply with CLE requirements.His
office received notification of his problem and suspension of his license by
certified mail.OLR was justified in
prosecuting Polich for practicing without a license, even though these counts
were dismissed.Attorney Polich's
defense was that his staff failed to notify him that he was suspended.As the referee stated, the attorney's
explanation is susceptible to skepticism.The referee judged the credibility
of the witnesses, and this court must abide by the referee's determination of
credibility, even though we too are skeptical of Attorney Polich's explanation
for the counts that were dismissed.

¶72Nothing in the record indicates that the counts on which
Attorney Polich prevailed were without prosecutorial merit or that the OLR
costs were unreasonable or unnecessary.Attorney Polich's conduct caused this prosecution to proceed on all the
counts.Why should the costs Attorney
Polich caused OLR to incur be shifted to all the other attorneys of the state
who are innocent of any wrongdoing?Between the members of the state bar and Attorney Polich, why should the
members pay for any part of the prosecution Polich (who was disciplined)
caused?

¶73In the present case, the seventh case, the dissent charges the
Office of Lawyer Regulation with over-litigating four cases.[30]The only evidence given for the charge of
over-litigating is that OLR did not prevail on all counts.No hearing was held by the referee or this
court on the issue of the reasonableness of the costs incurred in any of the
cases; neither the OLR nor the lawyer involved had an opportunity to explain
the costs or rebut the charge of over-litigating in any of the cases.I do not think that the court or any justice
should make unsubstantiated charges that either OLR staff or retained counsel
over-litigated a case.

¶74No one has accused the lawyers representing OLR in any of these
cases of padding their hours, that is, misstating the number of hours
worked.Everyone agrees they spent the
hours reported.Rather, a dissenting
justice has sometimes opined that the OLR lawyer should have spent less time on
the case.

¶75OLR staff lawyers get paid regardless of the hours they spend on
particular cases. They have more than
enough work to keep busy working efficiently on the cases they have.They need not spend excess time on a
case.

¶76Retained counsel take OLR cases as a public service and are paid
$60 an hour, a rate far below the market rate for legal work.A lawyer retained in an OLR case is lucky to
cover his or her office overhead, much less turn a profit.There is simply no incentive for retained
counsel to over-litigate under these circumstances, that is, to spend too many
hours on an OLR case!Time spent at $60
per hour cannot be spent on cases that pay more.As one lawyer retained by OLR joked at a recent seminar, "I
get paid $60.00 per hour for OLR work.I don't ask an extra question."

¶77In the present case, the dissent charges that OLR utilized
different procedures in two cases that straddled the change from BAPR to OLR so
as to increase the costs in the case using the new OLR procedure.[31]Implicit is an allegation that OLR
improperly manipulated the procedure to increase attorney fees or obtain a
favorable recommendation.Nothing in
the record supports any such inference.

¶78Finally, the dissent in the present case asserts that several
policy questions should be addressed (and they are good ones) but fails to
advance the discussion of these policy issues.The dissent poses as one policy question, "What factors should this
court consider when a disciplined attorney moves to reduce full costs?"[32]The dissent does not answer its own question
(and has not answered this question in its prior dissents), other than
recommending in the present case that the case be remanded to the referee to
levy costs (without giving any guidance to the referee).Nevertheless the question deserves a
response.[33]

IV

¶79Shifting costs to a losing party is a troublesome issue in the
American system, and states vary considerably in their approaches to costs
incurred in individual cases in the lawyer regulatory system.Some states impose no costs on the
disciplined attorney; others impose a standard fee that varies with the level
of discipline or stage of the proceeding.Still other states, like Wisconsin, levy all costs on the individual lawyer,
absent a showing of an inability to pay.Each alternative for dealing with costs has its own set of advantages
and pitfalls.

¶80In the hope that I might advance the discussion about costs, let
me present a list of several alternatives for dealing with costs.The list is not exhaustive.Until an attempt is made to articulate and
discuss alternatives, the debate about costs will continue in a relatively
unproductive manner.As I see it, here
are some alternatives:

¶81(1) The court can retain the present system, namely that the
court levy all or part of the costs against the lawyer involved.These costs include such things as the cost
for the referee and court reporter, as well as reasonable disbursements and
attorney fees.The advantage of this
alternative is it gives the court discretion to allocate fairly the costs in
each case.The disadvantages are that
no principles, criteria, or guidelines have been developed for levying partial
costs, and that a justice may dispute the costs on a hunch, without taking any
testimony or considering any evidence, that the costs are too high.

¶82Alaska has set forth factors for the court or the board to
consider in imposing costs and fees on a lawyer when a finding of misconduct is
made, including the following:the
complexity of the disciplinary matter; the duration of the case; the
reasonableness of the number of hours expended by counsel and the reasonableness
of the costs incurred; the reasonableness of the number of counsel used; and
counsel's efforts to minimize fees.

¶83If Wisconsin retains the present system of allowing the levy of
partial costs, this court should adopt criteria for the imposition of costs and
require the referee to levy costs.A
referee is in a better position than the justices of this court to levy
costs:The referee is often a
practicing lawyer with experience in keeping time sheets, has prepared cases,
and is familiar with billing norms.Even if the referee is not a practicing lawyer, the referee has
witnessed first-hand the quality of services rendered and can take testimony on
the reasonableness of the costs.

¶84(2) The court can adopt a bright-line rule that the court shall
levy all costs against the lawyer.The
advantage of such a rule is certainty and uniformity.But not all cases are the same.The disadvantage is that without court discretion, unfairness may
result.

¶85(3) The court can adopt a bright-line rule that no costs be
levied against the lawyer involved.The
advantage of such a rule is certainty and uniformity; it is simple to
administer.All members of the state
bar would bear the expenses of prosecuting individual cases rather than the
individual lawyer involved.If the
court were to adopt this alternative, the assessment of each member of the
state bar would probably increase by about $5.00 per year, a relatively small
amount.

¶86(4) The court can adopt a rule that the court (or referee) shall
levy costs on the basis of the counts successfully proved against the lawyer,
if the lawyer is found guilty of some of the charges.One of the Polich's dissents proposes this solution and
suggests two ways of allocating costs on the basis of counts proved and
dismissed.Both solutions are not as
easy or as fair in application as they might initially sound.Costs do not necessarily increase proportionally
with the number of counts, some of which are proved and some not, and the
members of the bar upon whom costs are imposed are innocent, while the
disciplined lawyer is not.

¶87(5) The court can adopt a rule that all costs shall be levied
against the lawyer except the attorney fees.Attorney fees seem to have generated the most discussion in the court
and eliminating the levy of attorney fess would substantially reduce costs
levied against the lawyer involved.Under this proposal attorney fees would be treated as administrative
costs to be funded by an increased assessment imposed on all members of the
state bar.This alternative is proposed
by a petition by Keith L. Sellen, Director of the Office of Lawyer Regulation
recently filed in this court.It will
be heard sometime in the fall of 2005.

¶88(6) The court can adopt a rule levying a fixed or graduated
administrative fee rather than an expense-based amount. Several states employ
this technique.Under this system,
probably a much smaller amount would be collected from the lawyer involved.

¶89No method has clearly distinct advantages over imposing full
costs on a disciplined lawyer or is free from significant pitfalls.

V

¶90The fundamental issue presented is who should fund the costs
incurred to prosecute individual cases against disciplined lawyers: The
disciplined lawyer against whom proceedings were brought after probable cause
was found, or the members of the bar?And in what proportion should these costs be borne?The court has asked the Office of Lawyer
Regulation, the Board of Administrative Oversight, and the state bar to
consider this issue and report to the court.A petition has been filed recently.

¶91In the absence of a proposal that has been clearly articulated,
debated, and adopted, I conclude that levying partial costs without any
principles, criteria, or guidelines degenerates into unbridled discretion.We demand that circuit courts exercise discretion
according to principles.And rightly
so.We demand that circuit courts
explain their exercise of discretion.And rightly so.We should hold
ourselves to this same high standard.Therefore I conclude that full costs should be levied on the lawyer
disciplined until the court can levy partial costs according to established
principles.

¶92For the reasons set forth, I write separately, in the hope that
with costs put in perspective and context, we can develop a sound proposal for
determining whether and when partial costs should be levied.

¶93DAVID T. PROSSER, J.(concurring
in part, dissenting in part).I
agree with the public reprimand of Attorney Chris K. Konnor but dissent from
the court's decision to levy the full cost of the disciplinary proceeding
against him.

¶94In this case, Attorney Konnor offered to stipulate to a public
reprimand on the counts filed.The
Office of Lawyer Regulation (OLR) rejected his offer, asking a referee to
recommend the more stringent sanction of a 90-day license suspension.After a hearing, the referee recommended a
public reprimand, and that is the sanction approved by this court.Nevertheless, the court imposes the full
cost of prosecuting the case, meaning that Attorney Konnor is required to pay
the cost of OLR's unsuccessful effort to secure a higher sanction.

¶95The majority attempts to cushion this determination with an
explanation that our court has asked the Board of Administrative Oversight to
review the assessment of costs in attorney discipline cases and to present
proposals for reform in the future.Until then, the court appears committed to eschewing its discretion
under SCR 22.24(1) (2002) and assessing full costs to disciplined attorneys,
irrespective of the merit in their arguments.This necessitates comment.

I

¶96The lawyer regulation system exists "to carry out the
supreme court's constitutional responsibility to supervise the practice of law
and protect the public from misconduct [and incompetence] by persons practicing
law in Wisconsin."SCR 21
Preamble.The Office of Lawyer
Regulation has been given the lead role in investigating and prosecuting
attorney discipline cases.OLR does
vital work for our court and the public, and it enjoys the confidence and
support of the full court.

¶97This cannot mean, however, that OLR is unaccountable.The Wisconsin Supreme Court should not be
expected to rubberstamp every determination made by other players in the lawyer
regulation system.This court has the
final word on attorney discipline and discretion whether to impose "all or
a portion of the costs of a disciplinary proceeding," SCR 22.24(1), or a
reinstatement proceeding.SCR
22.29(5).At present, the court has
been unwilling or unable to formulate a set of principles to assist in
exercising this discretion.

¶99In addition, the
legislature has authorized parties to a lawsuit to make settlement offers as a
means to promote settlements and control costs.Wis. Stat. § 807.01 (2003-04).[34]For instance, a defendant
may serve upon a plaintiff an offer of judgment to be taken against the
defendant, and "If the offer of judgment is not accepted and the plaintiff
fails to recover a more favorable judgment, the plaintiff shall not recover
costs but defendant shall recover costs to be computed on the demand of the
complaint."Wis. Stat. § 807.01(1).

¶100The lawyer regulation
system does not follow the American Rule.In attorney discipline cases, this court is imposing full costs on a
respondent attorney even when the attorney has been partially or substantially
successful or OLR has failed to recover "a more favorable"
determination than the attorney offered.With very rare exceptions, the only time an attorney escapes the
imposition of full OLR costs is when the attorney secures dismissal of all OLR
counts.Even in these cases the
attorney must shoulder his or her own expenses.The effect of this practice is to eliminate virtually all
accountability for OLR in terms of overcharging, over-litigating, or failing to
prove its case.

¶101SCR 22.24(1) provides that the supreme court may assess
all or a portion of the total costs of a disciplinary proceeding to a
respondent attorney.Thus, the
assessment is not mandatory.When a
respondent attorney prevails on many or most issues in a case but is assessed
the total costs of the proceeding, the attorney does not receive the benefit of
the discretion that is built into the rule.

¶103At least twice, in Penn and Webster, OLR utilized
procedures that increased costs.In Penn,
the attorney sought reinstatement before the restructuring of the lawyer
discipline system, but regulators held up his case until he became ineligible
for review by a district professional responsibility committee.Although no one opposed the attorney's
reinstatement, his case was assigned to a referee, and OLR retained
counsel.The attorney was forced to pay
the increased costs, plus the cost of litigating issues under OLR's new rules.The total assessment was more than $6800.

¶104In Webster, the court imposed more than $9100 in costs on
an attorney who sought but failed to gain reinstatement.OLR first rejected the favorable
recommendation of a district professional responsibility committee, then insisted
on repeating the reinstatement review process under the referee system to
obtain a different recommendation.The
attorney was finally reinstated in 2004, after incurring additional costs of
$5300.

¶105Several cases appear to have been over-litigated.For example, in O'Neil, the attorney
was given a public reprimand.Although
the referee concluded that the attorney "cooperated fully with the
OLR" and showed a cooperative attitude toward the proceedings, he was
assessed costs of more than $11,400.

¶106In Marks, OLR waited almost three years after a grievance
was made before it filed a complaint.Then it pursued the case adamantly.To illustrate, the referee dismissed two counts involving alleged
violations of another state's rules.OLR appealed and prevailed before this court, but its victory added
nothing to the attorney's discipline, only his costs.The assessed costs for a 60-day suspension exceeded $22,000.

¶107In Trewin, OLR filed 12 counts of misconduct against the
attorney.Some of these counts alleged
multiple violations against multiple clients.The attorney did not dispute some counts, challenged portions of other
counts, and resisted more than he might have if the desired discipline had not
been so severe.[35]He succeeded in defeating parts of several
counts, securing total dismissal of one count, and winning a significant
reduction in the recommended discipline, but was required to pay the entire
cost of the proceeding which amounted to more than $25,000.

¶108In another case decided today, OLR v. Steve J. Polich,
2005 WI 36, ___ Wis. 2d ___, ___ N.W.2d ___, the attorney is
given a public reprimand after beating back five of seven counts filed by OLR,
as well as OLR's recommendation of a nine month suspension.He is nonetheless required to pay the full
cost of $17,500.Again, the court
declines to apportion costs by exercising its discretion.

IV

¶109In my view, these cases demand a serious review of procedures in
the lawyer regulation system.The
overriding question for me is whether practices and procedures in the system
can be revised to achieve the system's goals at less cost and greater fairness
to all parties.

¶110It should be noted that some attorneys have tenaciously fought
OLR discipline, at enormous expense, without justification.I have no difficulty assessing these
attorneys with full costs (although I am somewhat skeptical whether the costs
assessed are always paid).If assessed
costs in these cases are not paid, OLR is put under tremendous pressure to seek
full costs in situations where full costs may not be justified.There should thus be broad interest in
revising procedures in the system in ways that will benefit OLR as well as the
affected attorneys.

¶111Several policy questions should be addressed.First, what standards should OLR employ when
it notifies an attorney what discipline it intends to seek and when, if ever,
should the desired sanction be revised?[36]Second, can the lawyer regulation system
make increased use of stipulations, partial summary judgments, and other means
to narrow disputes and hold down costs?Third, is there a place for plea agreements in the lawyer regulation
system?Fourth, should this court
authorize both parties to make offers of settlement similar to the offers under
Wis. Stat. § 807.01?Fifth, if plea agreements or offers of settlement are not permitted,
should the court establish standards that will discourage overcharging and
over-litigating discipline cases?Sixth, what factors should this court consider when a disciplined
attorney moves to reduce full costs?Seventh,
should the court consider financial penalties like forfeitures, apart from
costs, as one option in attorney discipline cases?

V

¶112In his concurrence in the Polich case, Justice Butler
suggested that the case be remanded to the referee for a reasonable
apportionment of costs.I believe
similar action is warranted here.Referees are usually better positioned than this court to make an
initial determination of appropriate costs.

VI

¶113The concurrence of the Chief Justice responds to the first five
sections of this concurrence/dissent.It criticizes my alleged failure in previous writings to propose a
formula for apportioning costs[37]
and concludes that until appropriate standards and criteria are adopted, this
court will continue to impose all reasonable costs incurred in a disciplinary proceeding
against a disciplined attorney and will not reduce costs on an ad hoc
basis.See Chief Justice
Abrahamson's concurrence, ¶56.

¶114The question of how to assign costs in attorney discipline cases
is not an easy one.In all likelihood,
there is no single all-purpose answer.My failure to propose a solution does not absolve the court of its duty
to seek a solution.It would be a
mistake to assume that no one outside of our chambers cares about the attorney
cost issue.

[1] Until
January 1, 1999, SCR 20:1.15(a) provided that a lawyer shall hold in trust,
separate from the lawyer's own property, property of clients or third persons
"that is in the lawyer's possession in connection with a representation."

Effective January 1, 1999, SCR 20:1.15(a) was amended
to provide that a lawyer shall hold in trust, separate from the lawyer's own
property, that property of clients and third persons that is in the lawyer's
possession in connection with the representation "or when acting in a
fiduciary capacity."

(a) A lawyer
shall hold in trust, separate from the lawyer's own property, that property of
clients and third persons that is in the lawyer's possession in connection with
a representation or when acting in a fiduciary capacity. Funds held in connection
with a representation or in a fiduciary capacity include funds held as trustee,
agent, guardian, personal representative of an estate, or otherwise. All funds
of clients and third persons paid to a lawyer or law firm shall be deposited in
one or more identifiable trust accounts as provided in paragraph (c). The trust
account shall be maintained in a bank, savings bank, trust company, credit
union, savings and loan association or other investment institution authorized
to do business and located in Wisconsin. The trust account shall be clearly
designated as "Client's Account" or "Trust Account" or
words of similar import. No funds belonging to the lawyer or law firm, except
funds reasonably sufficient to pay or avoid imposition of account service charges,
may be deposited in such an account. Unless the client otherwise directs in
writing, securities in bearer form shall be kept by the attorney in a safe
deposit box in a bank, savings bank, trust company, credit union, savings and
loan association or other investment institution authorized to do business and
located in Wisconsin. The safe deposit box shall be clearly designated as
"Client's Account" or "Trust Account" or words of similar
import. Other property of a client or third person shall be identified as such
and appropriately safeguarded. If a lawyer also licensed in another state is
entrusted with funds or property in connection with an out-of-state
representation, this provision shall not supersede the trust account rules of
the other state.

[4] Specifically,
regarding the latter count, it was alleged that Konnor had made
misrepresentations by omissions because he failed to advise the heirs that his
brother had stolen from the estate, and then had further attempted to cover up
the thefts by depositing into the estate account four separate checks from
Konnor's father with misleading notations.

[5] SCR
20:1.4(b) provides: "A lawyer shall explain a matter to the extent
reasonably necessary to permit the client to make informed decisions regarding
the representation."

[6] SCR
20:1.15(c)(1)a. provides: "IOLTA accounts. A lawyer who receives
client funds shall maintain a pooled interest-bearing, demand account for
deposit of client or 3rd-party funds that are: a. nominal in amount or
expected to be held for a short period of time."

In 1979 a rule amendment provided that BAPR or the
referee (and in 1980 the court) could assess the individual lawyer for direct and
indirect costs of a litigated proceeding.In the Matter of Promulgation of Supreme Court Rules, filed Dec.
11, 1979 (on file with the Clerk of Supreme Court, Madison, WI).The rules did not define direct and indirect
costs.

In December 1980 the court amended the rule to define
costs.Costs were defined in
essentially the same way as in the current rule, but the costs did not
explicitly include BAPR's attorney fees in formal proceedings.In the Matter of the Amendment of Supreme
Court Rules Governing Enforcement of Attorney Professional Responsibility (SCR
Chapters 11, 21 and 22), filed Dec. 29, 1980 (on file with the Clerk of
Supreme Court, Madison, WI) (creating SCR 22.01(6m) and amending 22.10).Apparently the practice was to assess the
individual attorney for costs incurred in formal proceedings involving that
attorney.

In 1985 the rule on costs was amended so that the
Supreme Court may assess all or part of the costs of the proceedings in which
it acted and BAPR may assess all or part of the costs of a proceeding in which
the board imposes discipline.In the
Matter of the Amendment of Supreme Court Rules Governing Enforcement of
Attorneys Professional Responsibility: SCR 22.20, filed May 28, 1985 (on
file with the Clerk of Supreme Court, Madison, WI).See SCR 22.20, 22 (Wis. Stat. Ann. 1997-98).

[15] Justice
Prosser's concurrence/dissent (agreeing with discipline but dissenting from
levy of full costs; urging remand to referee for apportionment of costs without
providing guidance for apportionment); OLR v. Polich, 2005 WI 36,
¶34, ___ Wis. 2d ___, ___ N.W.2d ___ (Prosser, J., agreeing with
discipline imposed but dissenting on costs; dissenting from levy of full costs;
urging remand to referee for apportionment of costs without providing guidance
for apportionment; not fully subscribing to Justice Butler's methodology of
apportioning costs; Butler, J., agreeing with discipline imposed but dissenting
from levy of full costs; urging remand to the referee to apply a rule either
that "costs associated exclusively with the unsuccessful
prosecution of a [lawyer] on specific counts may not be assessed against that
[lawyer]," ¶39 (emphasis in original) or that costs incurred in dismissed
counts that are not substantially related to successfully charged counts may
not be assessed against the lawyer, ¶42); OLR v. Trewin, 2004 WI 116,
¶¶53-62, 275 Wis. 2d 116, 684 N.W.2d 121 (Prosser, J., agreeing
with discipline but dissenting from imposition of full costs exceeding $25,000
because some of the counts were dismissed; no statement of what would be
reasonable costs or explanation of how to calculate reasonable costs, except
for a reference at ¶56 to a reader having a hard time"keeping score" of counts proved and not proved); OLR
v. Marks, 2003 WI 114, ¶90, 265 Wis. 2d 1, 665 N.W.2d 836
(Prosser, J., agreeing with discipline but dissenting from costs of $22,178.69
as disproportionate to seriousness of offense and as reflecting a desire by OLR
to appeal the referee's finding; no statement of what would be reasonable costs
or explanation of how to calculate reasonable costs); OLR v. O'Neil,
2003 WI 48, ¶23, 261 Wis. 2d 404, 661 N.W.2d 813 (Bablitch,
Prosser, and Sykes, JJ., agreeing with discipline but dissenting from levy of
full costs as excessive without explanation or discussion of what would be
reasonable costs); OLR v. Webster, 2002 WI 100, ¶59, 255
Wis. 2d 323, 647 N.W.2d 831 (Prosser, J., dissenting from
decision not to reinstate and objecting without any explanation or discussion
to "whopping sum" of $9,121.75 costs); OLR v. Penn, 2002 WI 5,
¶¶15-28, 249 Wis. 2d 667, 638 N.W.2d 287 (Bablitch and Prosser,
JJ., agreeing with reinstatement but dissenting from levy of full costs of$6,803.24 as seven times that levied in
another matter decided the same day but under older rules; no statement of what
would be reasonable costs or explanation of how to calculate reasonable
costs).For further discussion of these
cases, see Part III.

[16]OLR
v. Polich, 2005 WI 36, ___ Wis. 2d ___, ___ N.W.2d ___
(Butler, J., concurring on discipline and dissenting on levy of full costs;
urging remand to the referee to apply a rule either that "costs associated
exclusively with the unsuccessful prosecution of a [lawyer] on specific
counts may not be assessed against that [lawyer]," at ¶39 (emphasis in
original) or that costs incurred in dismissed counts that are not substantially
related to successfully charged counts may not be assessed against the lawyer,
at ¶42)).

[18]SeeO'Neil, 261 Wis. 2d 404, ¶23 (Bablitch, Prosser, and Sykes,
JJ., agreeing with decision not to reinstate and objecting without any
explanation or discussion about costs); Webster, 255
Wis. 2d 323, ¶59 (Prosser, J., dissenting from decision not to
reinstate and objecting without any explanation or discussion to "whopping
sum" of $9121.75 costs);Penn,
249 Wis. 2d 667, ¶¶15-28 (Bablitch and Prosser, JJ., agreeing with
reinstatement but dissenting from levy of full costs of $6893.24 as seven times
that levied in another matter decided the same day but under prior rules; no
statement of what would be reasonable costs or explanation of how to calculate
reasonable costs).

[24]Id.,
¶62 (Prosser, J., concurring in the discipline but dissenting from the levying
of full costs).In the present case;
the dissent characterizes the Trewin case as over-litigated.Justice Prosser's concurrence/dissent, ¶107.

[25]Trewin,
275 Wis. 2d 116, ¶62 (Prosser, J., concurring in the discipline but
dissenting from the levying of full costs).The dissent states at ¶62 that it would adjust some of the costs to
reflect Trewin's success in defending himself against some of OLR's charges but
fails to state how it would do so.

[28]Polich,
2005 WI 36, (Butler, J., concurring in discipline but dissenting from levy of
full costs; urging remand to the referee to apply a rule either that
"costs associated exclusively with the unsuccessful prosecution of
a [lawyer] on specific counts may not be assessed against that [lawyer],"
at ¶39 (emphasis in original) or that costs incurred in dismissed counts that
are not substantially related to successfully charged counts may not be
assessed against the lawyer, at ¶42).

Justice Prosser does not subscribe fully to Justice Butler's
methodology but joins in seeking a remand to the referee for an apportionment
of costs.Polich, 2005 WI 36,
¶34 (Prosser, J., concurring in discipline but dissenting from levying of full
costs).Justice Prosser characterizes
the Polich case as over-litigated.Justice Prosser's concurrence/dissent, ¶108.

[33] On
what basis then does the dissent charge that under the present cost structure
the OLR is not accountable "in terms of overcharging, over-litigating, or
failing to prove its case"?Justice Prosser's concurrence/dissent, ¶100.

[34] All
references to the Wisconsin Statutes are to the 2003-04 version, unless
otherwise noted.

[35] In my
opinion in the Trewin case, I stated that "the complaint against
Trewin at the outset was so open-ended that he had no idea what discipline OLR
was seeking, or what the potential consequences would be if he simply conceded every
count."OLR v. Michael G.
Trewin, 2004 WI 116, ¶57, 275 Wis. 2d 116, 684 N.W.2d 121
(Prosser, J., concurring/dissenting).In retrospect, I must acknowledge that that statement is not
correct.The complaint, dated December
12, 2002, asked that "the Court impose discipline commensurate with the
severity of Trewin's misconduct," but OLR apparently advised Trewin in
another document that it was seeking a one-year suspension.This discipline turned out to be more than
twice the discipline recommended by the referee.

[36] Under
present practice, the OLR staff, especially the director, determines the level
of discipline to be sought.As I
understand it, the OLR's retained counsel are not permitted to negotiate any
change in OLR's recommended discipline with the respondent attorney or the
attorney's counsel without approval from the director.

[37] I
acknowledge that I have never proposed a specific formula for apportioning
costs.Instead, I urged colleagues to
address the issue collectively.These
requests eventually led to the court's request for input from the Board of
Administrative Oversight.In OLR v.
Steve J. Polich, 2005 WI 36, ___ Wis. 2d ___, ___
N.W.2d ___, I joined Justice Butler in suggesting that the referee be
delegated authority to apportion costs.